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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.

Please cite the abstract as follows:

Abstract of the German Federal Constitutional Court’s Order of 13 November 2017, 2 BvR 1381/17 [CODICES]

In extradition matters, courts violate the fundamental right to effective judicial protection set out in the first sentence of Article 19.4 of the Basic Law if they fail to adequately investigate the relevant facts and independently assess the matter if there is reason to assume that a risk of political persecution exists in the event of extradition.

If an asylum application filed by the person concerned by extradition proceedings has previously been refused in a primarily competent state, the court deciding about the extradition request must – if evidence suggests that a risk of political persecution exists – generally make serious efforts to access the files from the asylum proceedings and, if that fails, clarify the facts by other means, for example by conducting a personal hearing of the person concerned.

Summary:

I.

The complainant, a Russian citizen of Chechen origin, is accused in Russia of having attempted to kill the victim of a sexual offence after having served a prison sentence imposed for that crime. He claims that both the charges of sexual assault and those of the attempted homicide are false accusations, made with the aim of putting him under pressure to disclose the names of insurgents.
Asylum applications filed by the complainant in Poland in 2015 were rejected; he filed a complaint against this decision but left Poland before a decision had been made. Once in Germany, he again applied for asylum. The asylum application was rejected as inadmissible on the grounds that Poland was responsible for the asylum proceedings. In addition, the German court ordered deportation to Poland. The complainant’s claims brought before the administrative court against the rejection of asylum were dismissed.
Meanwhile, due to the alleged attempted homicide, Russian authorities had applied for an international arrest warrant upon which the complainant was arrested in Leipzig in 2016. Since then he is held in custody.
In the proceedings, the Higher Regional Court (Oberlandesgericht) had asked the Public Prosecution Office to clarify the circumstances underlying the asylum application in Poland and the complainant’s submission before Polish authorities, and to request access to those asylum decisions that had already been adopted.
In April 2017, the Dresden Higher Regional Court declared the extradition admissible. Case files from the Polish asylum proceedings were not consulted. Accessed information comprised only a printout of e-mail communication that had taken place between the Dresden public prosecution office, the Federal Agency of Migration and Refugees and the Saxonian State Ministry of Justice. This printout referred to a statement made by a Polish liaison officer who had allegedly stated the complainant’s application for refugee protection in Poland had been “rejected entirely”. On that basis, the court, without performing its own substantive examination, considered that the extradition obstacle of an impending political persecution in the country of destination did not preclude the complainant’s extradition. Subsequently, the complainant unsuccessfully applied to the Higher Regional Court for a renewed admissibility decision under §33.1 of the German Act on International Cooperation in Criminal Matters. The constitutional complaint is directed against both decisions of the Higher Regional Court.

II.
Upon the complaint, the Federal Constitutional Court decided that the challenged decisions violate the first sentence of Article 19.4 of the Basic Law. The Higher Regional Court did not adequately investigate and examine whether the complainant is at risk of being politically persecuted in the country of destination.
The first sentence of Article 19.4 of the Basic Law contains a fundamental right to effective and - as far as possible - exhaustive judicial protection against acts of public authorities. The guarantee of effective legal protection generally implies the duty of the courts to re-examine contested administrative acts as to the underlying facts and the law.
Thus, in order to comply with the requirement of effective legal protection, the regular court may refrain from exhausting all means of accessing information only if evidence is inadmissible, entirely unsuitable, inaccessible or irrelevant to the decision. In the context of judicial admissibility proceedings in anticipation of extradition this means that the competent courts are obliged to investigate the facts of the case and examine exhaustively whether there are legal and factual obstacles to extradition. This also applies to the question of whether the person to be extradited is at risk of becoming a victim of political persecution in the country of destination.

The purpose of judicial examination of admissibility is to provide preventive legal protection of the persecuted person. Judicial admissibility proceedings and the assessment as to whether there exists such a risk of political persecution aim to prevent state interferences with constitutionally protected interests of the person to be extradited. If extradition is carried out despite the fact that there is such a risk of political persecution, this infringes the first and second sentence of Article 2.2 of the Basic Law. Any interpretation and application of extradition regulations by higher regional courts must take this into account and ensure effective judicial review. Even if an asylum entitlement in Germany cannot be derived from Article 16a.1 of the Basic Law, the provision’s underlying idea, namely to provide protection from political persecution in the country of destination, must be taken into account. Insofar as it seems likely that such political persecution will take place, the court must thus declare the requested extradition inadmissible. The court must analyse independently whether the prerequisites of this extradition obstacle are met. To comply with the first sentence of Article 19.4 of the Basic Law, the courts must, in the case of a risk of political persecution, take all available measures to investigate the relevant circumstances and must evaluate the facts independently. They make serious efforts to access the files from the foreign country’s asylum proceedings unless it is clear that this will not lead to any new findings. This ensures that the asylum seeker’s submission and all already existing factual investigations as to a risk of political persecution are taken into account and that contradictions are clarified and provisions made if necessary. Insofar as case files are not available, the court must mention this in its admissibility decision. In such a case, the court’s investigation duties must be satisfied by other measures, usually by conducting a personal hearing of the person concerned.

The Higher Regional Court failed to comply with this duty. It decided the case without having obtained the information requested from Poland and without having personally heard the complainant; it relied solely on a printout of e-mail communication that had taken place between different authorities (see above) and in which reference was made to a statement made by a Polish liaison officer who had allegedly stated the complainant’s application for refugee protection in Poland had been rejected entirely
Even if the court’s conduct in the proceedings were to be regarded as a serious attempt to gain access to the Polish case files, the court – in order to comply with the first sentence of Article 19.4 of the Basic Law – should have conducted a personal hearing of the complainant and independently appraised his statements to determined whether there is a risk of political persecution. This duty is independent of any examination that may have been carried out during the Polish asylum proceedings.
Furthermore, the court was not allowed to refrain from performing its own examination on the grounds that the Russian Federation had assured that the extradition request did not serve the purpose of persecution on grounds of race, religion, ethnicity or political conviction and that the complainant would be prosecuted only for the offence for which extradition was requested. Such an assurance under international law does not release the court from its duty to examine indications suggesting that a risk of political persecution in the country of destination exists. In doing so, the court must appreciate the complainant’s submission in a comprehensible and non-arbitrary manner, even if it comes to the conclusion that it does not follow this submission.